Utility seeks ruling that Boulder can't condemn without federal OK

Xcel Energy workers install a new pole on Pearl Street on the West End in Boulder on June 3, 2014. (Paul Aiken / Daily Camera )

Xcel Energy asked the Federal Energy Regulatory Commission on Tuesday to issue a ruling that Boulder cannot condemn a high voltage transmission line that circles the city without first getting the federal regulators' permission.

The filing made before the federal commission is one more salvo in the ever-widening legal war between Boulder and Xcel Energy as the city tries to form its own municipal electric utility.

"This declaratory relief is necessary because Boulder appears to be attempting to effectuate its condemnation without prior regulatory review at either the state or the federal level," Xcel's attorneys wrote in the filing.

Boulder spokeswoman Sarah Huntley said the city had just received the filing late Tuesday.

"Our attorneys are still evaluating it," she said. "We will respond according to the timelines and processes established by FERC."

Xcel's petition

Read Xcel Energy's full 169-page filing to the Federal Energy Regulatory Commission at the bottom of this page.

Boulder filed in district court last month to acquire Xcel's local distribution system, as well as all or part of nine substations and the transmission line, through eminent domain.

In doing so, Boulder acted contrary to a Colorado Public Utilities Commission ruling that said the city should present its acquisition and separation plans to the PUC before pursuing condemnation.

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The commissioners said the potential impact of Boulder's plans both on customers in unincorporated Boulder County and on regional reliability gave the state jurisdiction, despite the wide-ranging condemnation powers that Colorado's constitution gives to home rule cities such as Boulder.

Boulder appealed that ruling, but filed for condemnation before any decisions were made.

Xcel Energy has asked the district court to throw out the condemnation claim as premature and in violation of a binding PUC decision.

Transmission line 'integral'

The filing before the Federal Energy Regulatory Commission takes a similar tack, with attorneys for Xcel citing the authority the Federal Power Act gives the FERC over transfer of energy-related assets. Section 203 says the FERC must grant prior approval of the transfer of assets greater than $10 million.

Boulder has estimated the cost of the assets it seeks to acquire at $120 million, without singling out the cost of the transmission line.

Xcel has not publicly placed a value on the total assets sought by Boulder, but officials have indicated they believe the figure is much higher than the city's. In the FERC filing, Xcel said the transmission lines alone are worth "far in excess of $10 million."

In the filing, Xcel said that the transmission infrastructure represents an "integral" part of the utility company's regional system and of the interstate electrical system.

Xcel: Boulder circumventing regulators

Xcel wants the FERC to make three rulings: that Boulder cannot condemn transmission facilities without prior FERC approval, that any decision to grant such approval will consider cost and system reliability impacts, and that FERC jurisdiction does not replace or override PUC jurisdiction.

Xcel attorneys told the FERC that Boulder appears to be trying to circumvent both state and federal regulators by going first to condemnation, especially because Colorado condemnation law means the assets will be transferred once a value is determined.

"Boulder appears to be attempting to complete its condemnation without any prior state or federal regulatory review," Xcel said in the filing.

Xcel also said Boulder has tried to use post-condemnation review by FERC to argue that pre-condemnation review by the Colorado PUC is unnecessary.

That's why the company wants the federal commission to specifically uphold PUC jurisdiction over the substations that connect the local distribution system to the rest of Xcel's system, as well as over infrastructure outside city limits that Boulder wants to acquire.